Citation Nr: 0916972
Decision Date: 05/06/09 Archive Date: 05/12/09
DOCKET NO. 01-09 142 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim for service connection for hypertension.
2. Whether new and material evidence has been submitted to
reopen a claim for service connection for diabetes mellitus,
type II, to include as secondary to exposure to Agent Orange.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
A. Lindio, Associate Counsel
INTRODUCTION
The Veteran had active service with the Navy from April 1951
to April 1954 and with the Air Force from November 1956 until
September 1957.
This matter was previously before the Board of Veterans'
Appeals (BVA or Board) in June 2008 and was remanded to the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama for additional development. These claims
were also previously remanded by the Board in November 2004
and July 2003 for additional development. Prior to the
Remands, this matter was before the BVA on appeal from a
January 2001 rating decision.
The January 2001 rating decision also denied service
connection for residuals of a cervical rib syndrome, claimed
as a left shoulder disorder, and emphysema. That rating
decision also denied reopening claims for service connection
for asbestosis, a bilateral knee disorder, and asthma. An
April 2004 RO decision review officer decision granted
service connection, with a 100 percent evaluation, for
emphysema, asthma, and granted a 20 percent evaluation for
degenerative arthritis of the left shoulder; the RO deemed
these decisions to be full grants of these claims. A June
2008 BVA decision reopened the Veteran's claim for service
connection for asbestosis and denied service connection on
the merits. The BVA decision also denied reopening the
Veteran's claim for a bilateral knee disorder. These claims
are not currently before the Board.
The Veteran testified at a Board hearing held before a
Veterans Law Judge, via a video conference at the local VA
office, in August 2002. In March 2008 the Board informed him
that the Veterans Law Judge who conducted the hearing was no
longer employed by the Board and advised him that he was
entitled to another hearing. The Board stated that if the
Veteran did not respond to the letter within 30 days from the
date of the letter, it would assume that he did not want an
additional hearing. To date, the Veteran has not responded
and thus the Board will adjudicate his claim based on the
current record.
The Board notes that the United States Court of Appeals for
the Federal Circuit, in Boggs v. Peake, 520 F. 3d 1330 (Fed.
Cir. 2008), found that a claim for one diagnosed disease or
injury cannot be prejudiced by a prior claim for a different
diagnosed disease or injury, when it is an independent claim
based on distinct factual bases. Essentially, claims based
upon distinctly diagnosed diseases or injuries must be
considered separate and distinct claims. The Veteran has
neither claimed nor submitted evidence of any new diagnoses
for new claims. As such, the current claims will be
considered on the basis of new and material evidence and not
as separate and distinct claims.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2006). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. A final May 1997 rating decision denied claims for service
connection for hypertension and diabetes.
2. The evidence associated with the claims file since the
May 1997 final denial does not relate to an unestablished
fact necessary to substantiate the claims for service
connection for hypertension or diabetes mellitus, type II.
CONCLUSIONS OF LAW
1. The May 1997 rating decision is final. 38 U.S.C.A. § 7105
(West 2002); 38 C.F.R. § 20.1103 (2008).
2. Evidence received since the May 1997 rating decision is
not new and material; the claim of entitlement to service
connection for hypertension is not reopened. 38 U.S.C.A.
§ 5108 (West 2002); 38 C.F.R. § 3.156(a) (2000).
3. Evidence received since the May 1997 rating decision is
not new and material; the claim of entitlement to service
connection for diabetes mellitus, type II, is not reopened.
38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duty to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).
Proper notice from VA must inform the claimant of any
information and medical or lay evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide, in accordance with 38 C.F.R. § 3.159(b)(1).
Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice
must be provided prior to an initial unfavorable decision on
a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328
(Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112
(2004).
In addition, the notice requirements of the VCAA apply to all
five elements of a service-connection claim, including: (1)
veteran status; (2) existence of a disability; (3) a
connection between the Veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. See Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006). Further, this notice must include information
that a disability rating and an effective date for the award
of benefits will be assigned if service connection is
awarded. Id. at 486.
VCAA notice errors are presumed prejudicial unless VA shows
that the error did not affect the essential fairness of the
adjudication. To overcome the burden of prejudicial error,
VA must show (1) that any defect was cured by actual
knowledge on the part of the claimant; (2) that a reasonable
person could be expected to understand from the notice what
was needed; or, (3) that a benefit could not have been
awarded as a matter of law. See Sanders v. Nicholson, 487
F.3d 881 (Fed. Cir. 2007).
In the present case, the unfavorable rating decision that is
the basis of this appeal was already decided and appealed
prior to the enactment of the current § 5103(a) requirements
in 2000. The Court acknowledged in Pelegrini that where, as
here, the § 5103(a) notice was not mandated at the time of
the initial rating decision, the RO did not err in not
providing such notice. Rather, the Veteran has the right to
a content complying notice and proper subsequent VA process.
Pelegrini, 18 Vet. App. at 120.
However, the VCAA notice was provided by way of letters sent
to the Veteran, including in November 2003 and August 2005,
and most recently in March 2006, that fully addressed all
three notice elements. The letters informed him of what
evidence was required to substantiate the claims and of his
and VA's respective duties for obtaining evidence. The
letter informed him that his service connection claim must be
supported by evidence indicating a current disability,
evidence that the injury or disease was incurred or
aggravated during service, and medical evidence of a nexus
between the current disability and the in-service injury or
disease. He was also informed that VA would seek to provide
pertinent federal records pertinent to his claims. Finally,
he was informed that it was his responsibility to support his
claim with appropriate evidence, though VA would help him
obtain records from any non-federal sources. Any timing
error was cured by the subsequent readjudication of the
Veteran's claims by a September 2008 Supplemental Statement
of the Case.
In claims to reopen, VA must both notify a claimant of the
evidence and information that is necessary to reopen the
claim and notify the claimant of the evidence and information
that is necessary to establish entitlement to the underlying
claim for the benefit that is being sought. Kent v.
Nicholson, 20 Vet. App. 1 (2006).
To satisfy this requirement, the Secretary is required to
look at the bases for the denial in the prior decision and to
provide the claimant with a notice letter that describes what
evidence would be necessary to substantiate those elements
required to establish service connection that were found
insufficient in the previous denial.
In this case, the notice letter provided to the Veteran in
January 2001 included the criteria for reopening a previously
denied claim and the criteria for establishing service
connection, additional new and material evidence notice was
provided in June 2006. The Veteran was also provided
specific information as to why his claims were denied, s in
the April 2004, June 2007, and September 2008 Supplemental
Statements of the Case. Consequently, the Board finds that
adequate notice has been provided, as he was informed about
what evidence was necessary to substantiate the elements
required to establish service connection that were found
insufficient in the previous denial and that a reasonable
person would be able to determine what is necessary to
support his claims. Additionally, the September 2008
Supplemental Statement of the Case readjudicated the claims,
curing any timing errors as to the notice provided.
With respect to the Dingess requirements, the June 2007
Supplemental Statement of the Case provided the Veteran with
notice of what type of information and evidence was needed to
establish disability ratings, as well as notice of the type
of evidence necessary to establish an effective date. With
that document, the RO effectively satisfied the remaining
notice requirements with respect to the issues on appeal.
Although that notice addressed the rating criteria and
effective date provisions after the initial adjudication of
the claims, they were subsequently readjudicated in a
September 2008 Supplemental Statement of the Case. Thus any
timing error was cured by the readjudication of the claims.
Additionally, when, through no fault of the Veteran, records
under the control of the Government are unavailable, VA's
duty then requires that VA advise the Veteran of his right to
support his claim by submitting alternate sources of
evidence, including service medical personnel statements, or
lay evidence, such as "buddy" affidavits or statements.
Dixon v. Derwinski, 3 Vet.App. 261, 263 (1992). Washington
v. Nicholson, 19 Vet. App. 362 (2005); Cromer v. Nicholson,
19 Vet. App. 215 (2005). The Veteran was provided notice
regarding the loss of the Veteran's record in September 2000.
The Veteran demonstrated actual knowledge of the loss of his
records in a June 2001 Report of Contact. The June 2007 and
September 2008 Supplemental Statement of the Case also
indicated that lay evidence could be pertinent to the
Veteran's claim, indicating that a reasonable person should
know that lay evidence could be provided to support his
claim. Additionally, the Veteran submitted lay evidence from
his wife, at his August 2002 hearing, indicating actual
knowledge of his ability to provide lay evidence.
Furthermore, the Veteran is represented by the DAV, which
provided guidance on his claim.
Under these circumstances, the Board finds that the
notification requirements of the VCAA have been satisfied as
to both timing and content. Therefore, adequate notice was
provided to the Veteran prior to the transfer and
certification of his case to the Board and complied with the
requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).
Next, VA has a duty to assist the Veteran in the development
of the claim. This duty includes assisting him in the
procurement of service medical records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the Veteran. See Bernard v. Brown, 4
Vet. App. 384 (1993).
The RO has obtained VA outpatient treatment records and
Social Security Administration records, as well as other
identified medical records. The Veteran's has submitted
statements and lay evidence from his wife. He was also
provided an opportunity to set forth his contentions during a
hearing before a Veterans Law Judge.
Given the absence of new and material evidence submitted by
the claimant, the duty to assist is not triggered, and a VA
examination is unnecessary. See 38 U.S.C. § 5103A(d), (g);
Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345
F.3d 1334, 1353 (Fed.Cir. 2003) (Holding that VA need not
provide a medical examination or medical opinion until a
claim is reopened); Anderson v. Brown, 9 Vet. app. 542, 546
(1996) (Holding that unless the Veteran has submitted new and
material evidence warranting the reopening of his claim, the
duty to assist does not attach).
Significantly, neither the Veteran nor his representative has
identified, and the record does not otherwise indicate, any
additional existing evidence that is necessary for a fair
adjudication of the claim that has not been obtained. The
Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the Veteran. See Bernard v. Brown, 4
Vet. App. 384 (1993). Hence, no further notice or assistance
to the Veteran is required to fulfill VA's duty to assist in
the development of the claim. Smith v. Gober, 14 Vet. App.
227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz
v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
New and Material Evidence
The Veteran seeks to reopen previously denied claims for
service connection for hypertension and diabetes mellitus,
type II. A review of the record indicates that the Veteran
was previously denied service connection for those disorders
in a May 1997 rating decision. The Veteran was untimely in
filing a substantive appeal, following the issuance of a
Statement of the Case, and was informed of that fact in a
March 1999 letter. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R.
§ 20.1103 (2008).
The RO appears to have reopened the Veteran's claim for
service connection for diabetes mellitus, type II. However,
the question of whether new and material evidence has been
received to reopen a claim must be addressed by the Board
regardless any RO action. Barnett v. Brown, 83 F.3d 1380
(Fed. Cir. 1996).
As a general rule, a claim shall be reopened and reviewed if
new and material evidence is presented or secured with
respect to a claim that is final. 38 U.S.C.A.
§ 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a
final decision, the first inquiry is whether the evidence
obtained after the last disallowance is "new and material."
Under the version of 38 C.F.R. § 3.156(a) applicable in this
case, new and material evidence is defined as evidence not
previously submitted which bears directly and substantially
upon the specific matter under consideration, which is
neither cumulative nor redundant, and which by itself or in
conjunction with the evidence previously assembles is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) (2000);
Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998). There
has been a regulatory change in the definition of new and
material evidence under 38 C.F.R. § 3.156(a) that is
applicable to all claims filed on or after August 29, 2001.
As the Veteran's claim in this case was filed prior to August
29, 2001, the earlier version of the definition of new and
material evidence set forth above remains applicable in this
case.
When determining whether a claim should be reopened, the
credibility of the newly submitted evidence is presumed.
Justus v. Principi, 3 Vet. App. 510 (1992). In order for
evidence to be sufficient to reopen a previously denied
claim, it must be both new and material. If the evidence is
new, but not material, the inquiry ends and the claim cannot
be reopened. Smith v. West, 12 Vet. App. 312 (1999). If it is
determined that new and material evidence has been submitted,
the claim must be reopened. VA may then proceed to the merits
of the claim on the basis of all of the evidence of record.
The evidence of record at the time of the May 1997 rating
decision consisted of some service treatment records, which
generally did not indicate complaints of symptoms of or
treatment for either hypertension or diabetes mellitus, type
II.
A general VA examination was also of record from March 1997.
The report indicated that he had had hypertension for 3 years
and had been diagnosed with non-insulin dependent diabetes
mellitus the prior year. The Veteran also provided a
subsequent March 1999 statement reporting Agent Orange
exposure while acting as a Merchant Marine in the years
following his discharge from service.
The May 1997 rating decision found that the evidence did not
show a link between either the Veteran's claimed hypertension
or diabetes mellitus, type II and service.
The January 2001 rating decision, currently on appeal, found
no new and material evidence provided to support the
Veteran's claims. A July 2001 rating decision also appears
to have reopened the Veteran's claim, and denied service
connection for diabetes mellitus, associated with herbicide
exposure, since the Veteran did not develop diabetes
mellitus, type II, in service and his alleged herbicide
exposure occurred after his military discharge.
Specifically, the Veteran's alleged Agent Orange exposure
occurred following his discharge from active service, which
was neither in Vietnam or during the Vietnam era. Rather,
his alleged exposure occurred during a period when
presumptive service connection for diabetes mellitus, type
II, due to Agent Orange exposure would not apply, while he
was serving as a Merchant Marine in the years following his
discharge from active service.
Subsequent to the May 1997 rating decision, no opinions as to
the etiology of either his hypertension or diabetes mellitus,
type II have been provided. VA outpatient treatment records
did not note either hypertension or diabetes mellitus, type
II, for decades following his discharge, though they did
demonstrate that the Veteran was treated for both disorders;
they did not provide any opinions as to the etiology of
either disorder. For example, an August 2002 VA outpatient
treatment record noted that the Veteran had hypertension and
diabetes mellitus, type II, for 7-8 years, but did not
provide an opinion as to the etiology of either disorder.
Private medical records were also associated with the claims
file indicating diagnoses of hypertension and diabetes
mellitus, type II; however, none of the records provided any
medical evidence as to the etiology of either disorder. For
example, A February 1997 private medical record, from Dr.
R.H.W., noted that the Veteran had hypertension and diabetes
mellitus, type II, for 2 years, but did not provide a medical
opinion as to the etiology of either disorder. None of the
medical records submitted subsequent to the prior final
decision provided any medical nexus opinions relating the
etiology of the Veteran's claimed disorders to service.
In his current attempt to reopen the claim, the Veteran has
also filed additional personal statements, claiming exposure
to Agent Orange while serving as a Merchant Marine in the
years following his discharge from naval service, which was
reported in his October 2001 VA Form 9. He has also provided
statements, including lay statements from his wife, in an
August 2002 hearing, regarding his current physical health.
Although the evidence submitted since the May 1997 rating
decision is new, in that it was not previously of record, the
newly submitted evidence is not material. None of the newly
associated evidence provided any medical evidence attributing
the Veteran's claimed hypertension or diabetes mellitus, type
II, to his active service. The newly submitted medical
evidence only demonstrates what was previously known, that
the Veteran was treated for his claimed disorders decades
following his discharge from active service. Additionally,
the new lay evidence attesting to the Veteran's claims are
redundant of earlier statements of wherein the Veteran
claimed to have disorders in question, but do not provide
competent medical evidence supportive of his claim.
The evidence received since the May 1997 rating decision does
not contain credible medical evidence indicting that the
Veteran has hypertension or diabetes mellitus, type II,
related to service. As previously stated under the standards
for new and material evidence applicable for the Veteran's
claim, new and material evidence is evidence that has not
been previously submitted, which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in conjunction with the evidence previously
assembled is so significant that it must be considered in
order to fairly decide the merits of the claim. 38 C.F.R.
§ 3.156(a) (2000). The additional evidence received does not
bear directly and substantially on the matter of whether the
Veteran's hypertension or diabetes mellitus, type II, is
related to his active service. The additional evidence
submitted is not so significant that it must be considered to
make a fair determination of the merits of the claims.
Rather, the medical evidence is redundant of previously
submitted evidence indicating that the Veteran has diabetes
mellitus, type II, and hypertension, that he is currently
receiving treatment for both disorders, and that both
disorders were diagnosed following service. However, no
medical evidence as to the etiology of either disorder has
been submitted. Similarly, the lay evidence is redundant of
the Veteran's previous claims that he developed hypertension
and diabetes mellitus, type II, due to service. Accordingly,
the Board finds that the claims for service connection may
not be reopened.
ORDER
New and material evidence having not been submitted, the
application to reopen the claim for entitlement to service
connection for hypertension is denied.
New and material evidence having not been submitted, the
application to reopen the claim for entitlement to service
connection for diabetes mellitus, type II, is denied.
____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs